TechWire: EU telecoms commissioner: three-strikes will "certainly not become part of EU law"

Okay, there's a new law on internet access coming down from Europe.

Its significance lies in any effect it might have on the current legislative drift toward a Europe-wide 'three strikes' principle against file-sharers (as is law in France and may soon be law in Britain).

On one hand, it appears to galvanise resistance against a three-strikes law. But when read more closely, it may do nothing more than represent a principle that won't, ultimately, prevent a three-strikes law being introduced in Ireland.

Here's what it says (it's a bit windy, but it's important for anyone following this debate. I've added the bolded emphasis):

Article 1(3)a of the new Framework Directive

"Measures taken by Member States regarding end-users’ access to or use of services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law.

Any of these measures regarding end-users’ access to or use of services and applications through electronic communications networks liable to restrict those fundamental rights or freedoms may only be imposed if they are appropriate, proportionate and necessary within a democratic society, and their implementation shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law, including effective judicial protection and due process. Accordingly, these measures may only be taken with due respect for the principle of presumption of innocence and the right to privacy. A prior fair and impartial procedure shall be guaranteed, including the right to be heard of the person or persons concerned, subject to the need for appropriate conditions and procedural arrangements in duly substantiated cases of urgency in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms . The right to an effective and timely judicial review shall be guaranteed."

Okay, does that make sense?

If not, the European telecoms commissioner, Vivane Reding, sums it up this way:

"The new internet freedom provision represents a great victory for the rights and freedoms of European citizens. The debate between Parliament and Council has also clearly shown that we need find new, more modern and more effective ways in Europe to protect intellectual property and artistic creation. The promotion of legal offers, including across borders, should become a priority for policy-makers. 'Three-strikes-laws', which could cut off Internet access without a prior fair and impartial procedure or without effective and timely judicial review, will certainly not become part of European law."

Fairly bullish. But there is a key distinction. Three-strikes may not become part of European law at EU level. But that does NOT mean that three-strikes laws will not become law in member states. (It's already the law in France. It may soon be law in Britain.)

A lot of this seems to hang on the meaning of the term ‘judicial protection’.

I know that this is supposed to imply a judge’s oversight. But looking at the way that European law is often transposed into Irish law, it’s not really clear whether this strictly means that a judge has to physically oversee every internet termination.

This is especially so in a free and open market with multiple ISPs in operation (so that an ISP can claim that there are several other means of internet connection open to the cut-off party).

The thing is, if they actually wanted to rule out the introduction of a three-strikes rule, they could have been more specific. They could have simply said: no ISP may cut off a customer’s internet connection without a judicial order.

They didn't do that. Deliberately.

Comments

The wording appears to contemplate that "judicial protection" may mean after the fact "judicial review". I.e. terminate first, slow and cumbersome review process later. The prior "fair and impartial procedure" doesn't seem to require any judicial involvement. We should have more clarity on this as the UK debate on the Digital Economy Bill rumbles on (http://www.commonsleader.gov.uk/output/Page2830.asp) - that Bill is likely to tease out these issues before Irish law confronts them.

Posted by: TJ | November 23, 2009 at 11:33 AM